Citation Nr: 0619139
Decision Date: 06/29/06 Archive Date: 07/07/06
DOCKET NO. 02-00 963A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to an initial rating higher than 10 percent
for bilateral hearing loss.
2. Entitlement to an effective date earlier than March 1,
2001, for service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
J. Hager, Associate Counsel
INTRODUCTION
The veteran had active service from July 1959 to July 1963.
This matter initially came before the Board of Veterans'
Appeals (Board) from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Buffalo, New
York, which granted service connection for bilateral hearing
loss and assigned a 10 percent rating, effective March 1,
2001. The veteran appealed both the initial rating and
effective date assigned.
After the veteran testified at a January 2004 Central Office
hearing, the Board remanded the claim in June 2004 for
additional development. As explained below, the requested
development has taken place, and the Board will therefore
decide the claims. Stegall v. West, 11 Vet. App. 268, 271
(1998).
FINDINGS OF FACT
1. The evidence of record reflects that at all times during
the appeal period, the veteran has had an exceptional pattern
of hearing in his left ear warranting a designation of Level
VI hearing acuity. Prior to the May 3, 2005 VA examination,
the veteran had level III hearing acuity in his right ear; on
that date, he had level IV hearing acuity.
2. In July 1979, the RO denied the veteran's claim for
service connection for bilateral hearing loss because there
was no evidence of that disability either during or after
service. Although notified of that decision, and apprised of
his procedural and appellate rights, the veteran did not
appeal.
3. The veteran's petition to reopen this claim was received
on March 1, 2001, which is the earliest possible effective
date for a grant of service connection unless there was CUE
in the prior, final, July 1979 denial of his claim for
service connection for bilateral hearing loss.
4. The evidence before the RO at the time of its July 1979
denial of the veteran's claim for service connection for
bilateral hearing loss indicated that the veteran did not
have this disorder in or after service. The evidence on file
reasonably supported the decision reached and the law and
regulations were properly applied to the evidence on file.
CONCLUSIONS OF LAW
1. Prior to May 3, 2005, the criteria had not been met for
an initial evaluation of higher than 10 percent for bilateral
hearing loss; as of that date, the criteria have been met for
an initial evaluation of 20 percent, but no higher, for this
disorder. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West
2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86,
Diagnostic Code 6100 (2005).
2. An effective date prior to the March 1, 2001 date of the
veteran's petition to reopen his claim for service connection
for bilateral hearing loss is not warranted because there is
no CUE in the prior, July 1979 rating decision that denied
service connection under the law applicable at that time
based on the absence of evidence of hearing loss. 38
U.S.C.A. §§ 5110, 5103, 5103A (West 2002); 38 C.F.R.
§§ 3.303(a), 4.87 (1977); 38 C.F.R. §§ 3.105(a), 3.159, 3.400
(2005); Hensley v. Brown, 5 Vet. App. 155 (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA), 38
U.S.C.A. § 5100 et seq. (West 2002), and its implementing
regulations redefine the obligations of VA with respect to
its duties to notify and assist claimants. In Pelegrini v.
Principi, 18 Vet. App. 112 (2004), the Court discussed both
the timing and content of the VCAA's notice requirements.
The Pelegrini Court held that VCAA notice must be provided to
a claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits.
Pelegrini, 18 Vet. App. at 115, 120. See also Mayfield v.
Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The Court
in Pelegrini also held that VCAA notice must: (1) inform the
claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in his or her
possession that pertains to the claim. Pelegrini, 18 Vet.
App. at 120-121. See also Mayfield, 19 Vet. App. 103, 110
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006). VCAA notification need not be contained in a single
communication and the law and regulations are silent as to
the format to be used. Mayfield, 444 F.3d at 1333.
In the present case, VCAA notice was not provided prior to
initial adjudication of the claim. The Board noted this
deficiency in its June 2004 remand, and ordered appropriate
VCAA notification regarding the claims, which were now claims
for a higher initial rating and an earlier effective date.
The Appeals Management Center (AMC) provided such notice in
its June 2004 letter, prior to its adjudication of these
claims in its July 2005 supplemental statement of the case
(SSOC). The timing problem was thus cured by the Board's
remand for proper VCAA notification followed by
readjudication of the claims. Mayfield, 444 F.3d at 1333.
The June 2004 letter also met the VCAA's requirements
regarding the content of notification. In it, the AMC told
the veteran it was working on his claims for a higher initial
rating for bilateral hearing loss and an earlier effective
date for the grant of service connection for this disorder.
The letter also explained what the evidence had to show to
establish entitlement to both a higher disability rating and
an earlier effective date and the types of evidence that
could be submitted. In addition, the letter explained the
respective responsibilities of VA and the veteran in
obtaining additional evidence. The AMC also wrote, on page 2
of the letter: "If there is any other evidence or
information that you think will support your claim, please
let us know. If you have any evidence in your possession
that pertains to your claim, please send it to us."
The AMC also complied with the recently decided
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim, i.e., 1) veteran status; 2)
existence of a disability; 3) a connection between the
veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability. Id. at
484. The AMC provided information regarding both the degree
of disability and its effective date. To the extent that it
did not provide information as to any of the other elements,
the Board finds no prejudice to the veteran in proceeding
with the issuance of a final decision. See Bernard v. Brown,
4 Vet. App. 384, 394 (1993) (where the Board addresses a
question that has not been addressed by the agency of
original jurisdiction, the Board must consider whether the
veteran has been prejudiced thereby). Because service
connection has already been granted, any question as to
veteran status, the existence of a disability, or the
connection between service and the disability, is moot.
Moreover, the AMC requested the records of the Syracuse VA
Medical Center (VAMC) as directed by the Board, including
those from 1977, and the Syracuse VAMC replied in a June 2004
letter that it could not locate any records from this time
period, but submitted all available records. VA therefore
was not required to take additional action regarding these
records pursuant to its duty to assist. See 38 C.F.R.
§ 3.159(c)(2) (2005) (VA will end efforts to obtain Federal
records where the Federal department or agency advises VA
that the records do not exist or that the custodian does not
have them).
The Board notes that the veteran's representative in the June
2006 appellate brief presentation states that the AMC failed
to consider evidence presented after the July 2005 SSOC, and
that the representative "waives AOJ review so that the Board
can do the AMC's job" (p. 3). However, those materials,
consisting of audiological examinations by the veteran's
employer, were duplicative, as they had been identified and
considered by the AMC in its July 2005 SSOC. In addition,
the RO granted service connection for tinnitus in October
2002, so the Board need not address this issue in this
decision.
As VA has obtained all identified, existing medical records
and there is no indication that any other records exist that
should be requested, or that any pertinent, existing evidence
was not received, VA complied with the VCAA's duty to assist
provisions and their implementing regulations.
Therefore, under these circumstances, no further development
is required to comply with the VCAA or the implementing
regulations, and the Board will proceed to adjudicate the
veteran's claims.
Entitlement to a Higher Initial Rating
Ratings for service-connected disabilities are determined by
comparing the symptoms the veteran is presently experiencing
with criteria set forth in VA's Schedule for Rating
Disabilities-which is based as far as practical on average
impairment in earning capacity. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. § 4.1 (2005). Separate diagnostic
codes identify the various disabilities. When a question
arises as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2005). After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. 38 C.F.R. § 4.3 (2005). Also, when making
determinations as to the appropriate rating to be assigned,
VA must take into account the veteran's entire medical
history and circumstances. See 38 C.F.R. § 4.1 (2005);
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).
Where, as here, a veteran timely appeals a rating initially
assigned when service connection is granted, the Board must
consider entitlement to "staged" ratings to compensate for
times since filing the claims when the disabilities may have
been more severe than at other times during the course of the
appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26
(1999).
The severity of a hearing loss disability is determined by
applying the criteria set forth at 38 C.F.R. § 4.85,
Diagnostic Code 6100 (2005). Under these criteria,
evaluations of bilateral hearing loss range from 0 to 100
percent based on organic impairment of hearing acuity as
measured by the results of two types of tests: controlled
speech discrimination tests and pure tone hearing threshold
level tests. The average puretone hearing threshold level
combined with the speech discrimination percentage is used to
determine the Roman numeral designation for hearing
impairment from Tables VI and VII. 38 C.F.R. § 4.85(a), (d)
(2005).
Table VI, "Numeric Designation of Hearing Impairment Based
on Puretone Threshold Average and Speech Discrimination," is
used to determine a Roman numeral designation (I through XI)
for hearing impairment based on a combination of the percent
of speech discrimination (horizontal rows) and the pure tone
threshold average (vertical columns). The Roman numeral
designation is located at the point where the percentage of
speech discrimination and pure tone threshold average
intersect. 38 C.F.R. § 4.85(b) (2005).
Table VII, "Percentage Evaluations for Hearing Impairment,"
is used to determine the percentage evaluation by combining
the Roman numeral designations for hearing impairment of each
ear. The horizontal rows represent the ear having the better
hearing, while the vertical columns represent the ear having
the poorer hearing. The percentage evaluation is located at
the point where the row and column intersect. 38 C.F.R. §
4.85(e) (2005).
However, 38 C.F.R. § 4.86 (2005) provides that where there
are exceptional patterns of hearing, such as an average of 55
decibels or more at all four frequencies, or 30 decibels or
less at 1000 and 70 or more at 2000, Table VIa may be used,
if it results in a higher numeral designation.
On the authorized VA audiological evaluations during the
appeal period, the veteran's puretone thresholds, in decibels,
were as follows:
April 2001:
Hertz
1,000
2,000
3,000
4,000
Average
Right
ear
45
65
75
90
69
Left ear
70
70
70
85
74
Speech recognition was 88 percent in the right ear and 84
percent in the left ear.
May 2002:
Hertz
1,000
2,000
3,000
4,000
Average
Right
ear
45
65
80
85
69
Left ear
70
70
65
80
71
Speech recognition was 84 percent in the right ear and 80
percent in the left ear.
May 2005:
Hertz
1,000
2,000
3,000
4,000
Average
Right
ear
55
65
75
90
71
Left ear
65
70
70
85
73
Speech recognition was 80 percent in the right ear and 76
percent in the left ear.
At all of the evaluations above, the left ear contained an
exceptional pattern of hearing, as the threshold at each
frequency were 55 decibels or higher. Thus, in April 2001,
Table VIa resulted in a higher numeral, VI, than did Table VI
for the left ear. The right ear 60 average decibels and 88
speech recognition resulted in a Roman Numeral III under
Table VI. When the poorer, left ear VII is combined with the
better, right ear III, an evaluation of 10 percent is
warranted.
In May 2002, the left ear 71 decibel average results in a
Roman Numeral VI under Table VIa, higher than the designation
would be under Table VI. The right ear 69 decibel average
and 84 percent speech recognition results in a Roman Numeral
III under Table VI. When these figures are combined in Table
VII, a 10 percent rating is again warranted.
In May 2005, the 73 decibel average in the left ear warrants
a Roman numeral designation of VII under Table VIa, higher
than the designation would be under Table VI. The right ear
71 decibel average combined with the 80 percent speech
recognition warrants a Roman Numeral IV designation under
Table VI. When these are combined under Table VII, a 20
percent evaluation is warranted.
The above evidence reflects that prior to the May 3, 2005 VA
examination, the veteran was entitled to a 10 percent rating,
but the figures from that examination warranted a 20 percent
rating. All of these ratings are derived by a "mechanical"
(i.e., nondiscretionary) application of the numeric
designations tabulated after audiometric evaluations are
rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349
(1992). This same mechanical application reflects that a
higher, 30 percent evaluation is not warranted by the figures
at the May 3, 2005 VA examination and the 20 percent rating
was not warranted prior to that date.
The Board also has considered whether the case should be
referred to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R.
§ 3.321(b)(1) (2005). However, the veteran has not required
frequent hospitalization for his bilateral hearing loss, and
the manifestations of the disability are fully contemplated
by the schedular criteria. Moreover, although the veteran
and his wife have indicated that his bilateral hearing loss
has negatively affected his employment and personal life,
there is no indication in the record that the average
industrial impairment from the bilateral hearing loss is in
excess of that contemplated by the assigned evaluation or any
indication that application of the schedular criteria is
otherwise rendered impractical. Thus, referral of this case
for extra-schedular consideration is not warranted. See
Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996);
Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown,
8 Vet. App. 218, 227 (1995).
In sum, the evidence reflects that the veteran is not
entitled to an initial evaluation higher than 10 percent
prior to May 3, 2005, and that as of that date he is entitled
to a rating of 20 percent, but no higher, for his bilateral
hearing loss based on nondiscretionary application of the
applicable regulatory framework and consideration of
extraschedular factors. The benefit-of-the-doubt doctrine is
therefore not for application, and the claim for a higher
initial rating for bilateral hearing loss is granted to the
extent indicated. See 38 U.S.C.A. § 5107(b) (West 2002); 38
C.F.R. §§ 3.102, 4.3 (2005); Alemany v. Brown, 9 Vet. App.
518, 519-20 (1996).
Earlier Effective Date
The current effective date of the grant of service connection
for the veteran's bilateral hearing loss is March 1, 2001,
the date the veteran's petition to reopen this claim was
received. "A claim may be reopened and allowed if new and
material evidence is submitted under 38 U.S.C. §§ 5108 and
7104(b), but the effective date of such an allowance would be
the date the claim is reopened." VAOGCPREC 9-94 (March 25,
1994) (citing 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400). Under
38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400(r)
(2005) the effective date of a reopened claim for service
connection is the date of receipt of claim or the date
entitlement arose, whichever is later. By statute and
regulation, the effective date for service connection based
on a reopened claim cannot be the date of receipt of an
original claim that was previously denied. Waddell v. Brown,
5 Vet. App. 454, 456 (1993).
Thus, under the above rules, the earliest effective date the
RO could have assigned after granting the veteran's March
2001 petition to reopen his claim for service connection for
bilateral hearing loss was the March 1, 2001 date the
petition was received. The prior, September 1977 claim could
not provide an earlier effective date because the veteran did
not perfect his appeal from the July 1979 denial of this
claim, which was therefore final and binding on him. 38
U.S.C.A. § 7105(d)(3) (West 2002); 38 C.F.R. §§ 3.104(a),
20.200, 20.302(b), 20.1103 (2005).
However, 38 C.F.R. § 3.105(a) (2005) provides an exception to
the above rule-previous determinations that are final and
binding will be accepted as correct "in the absence of clear
and unmistakable error." Thus, such decisions are not final
and binding where CUE is found. Moreover, where CUE is
established, "the prior decision will be reversed or
amended." Id. And, for the purpose of authorizing benefits,
the decision reversing a prior decision on the grounds of CUE
"has the same effect as if the corrected decision had been
made on the date of the reversed decision." Id.
This exception is directly relevant to the present case. The
veteran claims that the July 1979 denial was the result of
CUE, without which the claim would have been granted,
resulting in an earlier effective date. See 38 C.F.R. §
3.400(b)(2)(i) (2004).
A CUE claim is a collateral attack upon a final rating
decision but there is a presumption of validity to such final
decisions. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). For
there to be CUE either the correct facts, as they were known
at the time, were not before the RO (which requires more than
a simple allegation or disagreement as to how the facts were
weighed or evaluated), or the law or regulations extant at
that time were incorrectly applied. Further, the error must
appear to be undebatable so that reasonable minds could only
conclude that the original decision was fatally flawed and of
the sort which if it had not been made would manifestly
change the outcome. Damrel v. Brown, 6 Vet. App. 242, 245
(1994); Russell v. Principi, 3 Vet. App. 310, 313 (1992).
The veteran and his representative claim that there was CUE
in July 1979 rating decision, which denied the claim for
service connection for bilateral hearing loss based on the
fact that hearing loss was not shown by the evidence of
record. They argue that there were in fact records in
existence at that time, including a January 1966 letter from
Dr. "J.P.," whom the veteran had identified in his original
claim and the RO had unsuccessfully sought to contact to
obtain records at that time, employment audiology
examinations, and records of the Syracuse VAMC said to
include evidence of hearing loss (Hearing transcript, p. 3;
July 2005 Statement in Support of Claim). They also argue
that VA's failure to obtain these records or otherwise
conduct testing to establish hearing loss violated its duty
to assist the veteran. These arguments do not warrant a
finding of CUE in the prior rating decisions, for the
following reasons.
The RO's July 1979 denial was based on the absence of
evidence of hearing loss and the existence of the claimed
disability was a necessary element for a grant of service
connection under the law in effect at that time. 38 C.F.R. §
3.303(a) (1977). The only evidence before the RO at that
time was the service medical records (SMRs), which contained
only a single ear-related complaint of difficulty when
clearing his ears, with the ears normal on the July 1963
separation examination. The separation examination also
contained whispered voice hearing examination results of
15/15 and audiometric readings of 0 in both ears at 250 and
500 Hertz, 5 (right) and 0 (left) at 1000 and -10 (right) and
5 (left) at 2000. After conversion from the American
Standards Association Units in effect prior to October 31,
1967 to the International Standard Organization (ISO) units
thereafter, these scores were within normal limits. Hensley
v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for
normal hearing is from 0 to 20 decibels). Although normal
hearing test results at the time of separation is not
necessarily a bar to service connection for hearing loss
disability, Hensley v. Brown, 5 Vet. App. at 159-60, there
was also no evidence of post-service hearing loss before the
RO at the time of the July 1979 rating decision. See Id. at
157; 38 C.F.R. § 4.87 (1977) (by impairment of auditory
acuity is meant the organic hearing loss for speech). Thus,
the RO's decision was the correct one based on the evidence
before it and the law in existence at the time of the
decision.
Moreover, even assuming that the RO breached its duty to
assist the veteran by not obtaining additional records at the
time of the July 1979 denial, such a breach would not warrant
a finding of CUE in that prior decision. The Federal Circuit
did hold in Hayre v. West, 188 F.3d 1327, 1334 (Fed Cir.
1999), that an RO's breach of its duty to assist a veteran in
not pursuing relevant records may constitute a "grave
procedural error" rendering a prior rating decision non-
final. However, the Court overruled this decision in Cook v.
Principi, 318 F.3d 1334 (Fed. Cir 2003) (en banc), holding
that a breach of the duty to assist does not vitiate the
finality of an RO decision and cannot constitute CUE. Id. at
1341, 1344. Therefore, even if the RO breached its duty to
assist the veteran by not obtaining the records of Dr.
"J.P.", the veteran's employer, and the Syracuse VAMC, this
failure does not warrant a finding that there was CUE in the
July 1979 denial of his claim for service connection for
bilateral hearing loss.
In addition, while the Court has held that a VA adjudicator
is deemed to have constructive knowledge of VA medical
records not in its possession, see Bell v. Derwinski, 2 Vet.
App. 611, 613 (1992), this constructive-notice rule is not
applicable to decisions rendered prior to the issuance of the
Bell opinion. See Damrel v. Brown, 6 Vet. App. at 246.
Prior to that time, the record before an RO is generally not
deemed to include VA records that were not actually before
the RO when it rendered its decision on a claim, and an RO's
failure to consider it cannot form the basis for a finding of
CUE. VAOPGCPREC 12-95 (May 10, 1995). The July 1979 denial
preceded the 1992 Bell decision. Bell's constructive notice
rule is therefore not applicable to that rating decision, and
even if the Syracuse VAMC records of 1977 had been found and
contained a diagnosis of bilateral hearing loss, these VA
medical records cannot be deemed to have been in the record
at the time the decisions were rendered.
Furthermore, it is noted that if the records merely showed
complaints of hearing loss, it is noted this evidence would
have been years post-service. There is no suggestion that
there is evidence in these records that there was any
discussion of the onset of any hearing loss. Moreover,
attempts to obtain those records as part of the current claim
have resulted in information that no records have been found.
Based on the above, neither the existence of private or VA
records containing a diagnosis of hearing loss that were not
before the RO, nor any breach of the duty to assist in
failing to obtain these records or take any other actions
based on the law and evidence existing at the time, warrants
a finding of CUE in the RO's July 1979 rating decision
denying service connection for bilateral hearing loss. That
prior rating decision therefore became final and binding on
the veteran when he did not appeal it, and could only be
reopened with new and material evidence. Thus, when the RO
granted the veteran's March 1, 2001 petition to reopen, the
date of receipt of that petition was the earliest possible
effective date. See 38 U.S.C.A. § 5110 (West 2002) and 38
C.F.R. § 3.400(b)(2)(i) (2005) (where claim received over a
year after separation from service, effective date is date of
receipt of claim, or date entitlement arose, whichever is
later); Waddell v. Brown, 5 Vet. App. at 456 (by statute and
regulation, the effective date for service connection based
on a reopened claim cannot be the date of receipt of an
original claim which was previously denied). As the
effective date of the grant of service connection for the
veteran's bilateral hearing loss is the earliest possible, he
cannot be entitled to an earlier one, and his claim for an
earlier effective date must therefore be denied.
ORDER
Subject to the laws and regulations governing awards of
monetary benefits, an evaluation of 20 percent, but no
higher, is granted for bilateral hearing loss as of May 3,
2005; the claim for an initial rating higher than 10 percent
prior to that date is denied.
The claim for an effective date earlier than March 1, 2001
for bilateral hearing loss is denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs